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1 No. 15- In the Supreme Court of the United States YUSUF ABDI ALI, Petitioner, v. FARHAN MOHAMOUD TANI WARFAA, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit PETITION FOR A WRIT OF CERTIORARI Joseph Peter Drennan Counsel of Record 218 North Lee Street, 3 rd Floor Alexandria, Virginia (703) joseph@josephpeterdrennan.com Counsel for Petitioner May 2, A (800) (800)

2 i QUESTION PRESENTED In Samantar v. Yousuf, 560 U.S. 305 (2010), this Court held that the common law, rather than the Foreign Sovereign Immunities Act (FSIA), governs the immunity of individual foreign officials who are sued for their official acts. On remand in that case, the Fourth Circuit created a categorical exception to common-law immunity whenever plaintiffs sue foreign officials over alleged jus cogens norms of international law. In this case, the Fourth Circuit applied its per se rule of non-immunity to deny common law immunity to a foreign official accused of violations of alleged jus cogens norms. As the United States recognized in a brief filed in connection with an unsuccessful succesive petition for a writ of certiorari in the Samantar case, following the remand in that case, the Fourth Circuit s per se rule of non-immunity creates a circuit split and jeopardizes important interests of the United States. The question presented, which now arises on certiorari from the Fourth Circuit s final judgment in this case, is: Whether a foreign official s common-law immunity for acts performed on behalf of a foreign state is abrogated by plaintiff s allegations that those official acts violated jus cogens norms of international law.

3 ii PARTIES TO THE PROCEEDING Petitioner is Yusuf Abdi Ali. Respondent is Farhan Mohamoud Tani Warfaa.

4 iii TABLE OF CONTENTS Page QUESTION PRESENTED...i PARTIES TO THE PROCEEDING... ii TABLE OF CONTENTS...iii TABLE OF APPENDICES...v TABLE OF CITED AUTHORITIES... vii PETITION FOR WRIT OF CERTIORARI...1 OPINIONS BELOW...1 JURISDICTION...1 STATUTORY PROVISIONS INVOLVED...1 STATEMENT OF THE CASE...2 District Court Proceedings...3 Fourth Court Proceedings...6 Petition for Certiorari...7 REASONS FOR GRANTING THE PETITION...7

5 iv Table of Contents Page I. THE FOURTH CIRCUIT S DECISION REINFORCES A CIRCUIT SPLIT OVER THE IMPORTANT QUESTION OF WHETHER ALLEGED JUS COGENS VIOLATIONS DEFEAT FOREIGN OFFICIAL IMMUNITY...7 A. The Fourth Circuit s Decision Conflicts With The Decisions Of Other Circuits...7 B. This Important Question Warrants This Court s Immediate Review...12 C. This Case Presents An Ideal Vehicle To Consider The Question Presented...15 II. THE FOURTH CIRCUIT S DECISION IS WRONG...16 A. The Fourth Circuit s Decision Is Contrary To International Law...16 B. The Fourth Circuit s Decision Is Contrary To Domestic Law, Including Decisions Of This Court...21 CONCLUSION...23

6 v TABLE OF APPENDICES Page Appendix A Letter from Hon. Leonie M. Brinkema to Mary McLeod, Principal Deputy Legal Advisor to U.S. Secretary of State June 21, 2013, dated February 1, a Appendix B Statement of Interest of the United States September 19, 2013, with Exhibit A, Letter from Mary McLeod, Acting Legal Advisor to Secretary of State to Joseph H. Hunt, Director, Federal Programs Branch, Civil Division U.S. Justice Department, DATED September 17, a Appendix C Notice of Filing of Letter from Abdi Farah Shirndon, Prime Minister of The Republic of Somalia, to U.S. Secretary of State John Forbes Kerry December 4, 2013, with said Letter, Dated November 30, a Appendix d Transcript of Proceedings before U.S. District Court for the Eastern District of Virginia, dated July 25, a

7 vi Table of Appendices Page Appendix e Memorandum Opinion of the U.S. District Court for the Eastern District of Virginia, dated July 29, a Appendix F Order of the U.S. District Court for the Eastern District of Virginia, DATED July 29, a Appendix G Published Memorandum Opinion of the U.S. Court for Appeals for the Fourth Circuit, DATED February 1, a Appendix H Judgment Order of the U.S. Court of Appeals for the Fourth Circuit, DATED February 1, a Appendix I Statutory Provisions...91a

8 vii TABLE OF CITED AUTHORITIES Cases Page Al-Adsani v. United Kingdom, App. No /97, 34 Eur. H.R. Rep. H. (2001)...17 Belhas v. Ya alon, 515 F.3d 1279 (D.C. Cir. 2008)...passim Boos v. Barry, 485 U.S. 312 (1988)...17 Bouzari v. Islamic Republic of Iran, (2004)71 O.R.3d 675 (C.A.)...17, 19 Boyle v. United Techs. Corp., 487 U.S. 500 (1988)...22 Chuidian v. Philippine Nat l Bank, 912 F.2d 1095 (9th Cir. 1990)...14 Doe I v. State of Israel, 400 F. Supp. 2d 86 (D.D.C. 2005)...13 Doe v. Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004)...13 Enahoro v. Abubakar, 408 F.3d 877 (7th Cir. 2005)...13 Fang v. Jiang, (2006) NZAR 420 (H.C.)...17, 18, 19

9 viii Table of Contents Page First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983)...22 Giraldo v. Drummond Co., 808 F. Supp. 2d 247 (D.D.C. 2011), aff d, No , 2012 WL (D.C. Cir. Oct. 23, 2012)...11, 13 Heaney v. Gov t of Spain, 445 F.2d 501 (2d Cir. 1971)...9, 13 Jones v. Saudi Arabia, (2007) 1 A.C. 270 (H.L. 2006)...17, 18, 19 Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007)...8 Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009)...passim Mireskandari v. Mayne, No. CV123861JGBMRWX, 2016 WL , (C.D. Cal. Mar. 23, 2016), judgment entered, No. CV123861JGBMRWX, 2016 WL (C.D. Cal. Mar. 23, 2016)...7 Mwani v. bin Laden, 417 F.3d 1 (D.C. Cir. 2005)...13 Paul v. Avril,

10 ix TABLE OF CITED AUTHORITIES Page 812 F. Supp. 207 (S.D. Fla. 1993)...14 Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193 (2007)...22 Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994)...14 Republic of Austria v. Altmann, 541 U.S. 677 (2004)...12 Regina v. Bartle, ex parte Pinochet, 38 I.L.M. 581 (H.L. 1999)...19 Richardson v. Attorney Gen. of the British Virgin Islands, No. CV , 2013 WL (D.V.I. Aug. 20, 2013)...8 Rosenberg v. Pasha, 577 F. App x 22 (2d Cir. 2014)...10 Samantar v. Yousuf, 560 U.S. 305 (2010)...passim Samantar v. Yousuf, 134 S. Ct. 897 (2014)...passim Sampson v. Federal Republic of Germany, 250 F.3d 1145 (7th Cir. 2001)...14

11 x Table of Contents Page Sarei v. Rio Tinto PLC, 487 F.3d 1193 (9th Cir. 2007)...21 Saudi Arabia v. Nelson, 507 U.S. 349 (1993)...21 Schooner Exchange v. McFaddon, 11 U.S. 116 (1812)...12 Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1994)...14 Smith v. Socialist People s Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996)...14 Victory Transport Inc. v. Comisaria General de Abastecomientos y Transportes, 336 F.2d 354 (2d Cir. 1964) Warfaa v. Ali, 811 F. 3d 653 (4 th Cir. 2016)...1 Warfaa v. Ali, 33 F.Supp. 3d 653 (E.D. Va. 2014)...1 Weixum v. Xilai, 566 F. Supp. 2d 35 (D.D.C. 2008)...10

12 xi Table of Contents Page Ye v. Zemin, 383 F.3d 620 (7th Cir. 2004)...passim Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012)...6 Zhang v. Zemin, (2010) NSWCA 255 (C.A.) Statutes 28 U.S.C. 1254(1) U.S.C U.S.C U.S.C note U.S.C U.S.C U.S.C U.S.C U.S.C U.S.C

13 xii Table of Contents Other Authorities Page 136 Cong. Rec. S (daily ed. Oct. 27, 1990)...19 Curtis A. Bradley & Jack L. Goldsmith, Pinochet and International Human Rights Litigation, 97 Mich. L. Rev (1999)...19, 20 Curtis A. Bradley & Laurence R. Helfer, International Law and the U.S. Common Law of Foreign Official Immunity, 2010 Sup. Ct. Rev Fed. R. Civ. P. 4(k)(2)...13 Jurisdictional Immunities of the State (Ger. v. Italy), Judgment (Feb. 3, 2012), available at pdf...17, 19 Remarks by Mary McLeod at the 69th United Nations General Assembly Sixth Committee (Legal) Session on Agenda Item 78: Report of the International Law Commission on the Work of its 66th Session available at remarks/ Restatement (Second) of Foreign Relations Law 66 (1965)...9 Status of the CAT, UN Doc. CAT/C/Rev. 5 (Jan. 22, 1998)...19

14 1 PETITION FOR WRIT OF CERTIORARI Yusuf Abdi Ali respectfully petitions for a writ of certiorari to review the final judgment of the United States Court of Appeals for the Fourth Circuit. OPINIONS BELOW The opinion of the court of appeals on immunity (Pet. App.) is reported at 811 F.3d 653 (4th Cir. Feb. 1, 2016). The district court s opinion denying in part and granting in part Petitioner s motion to dismiss the amended complaint is reported at 33 F. Supp. 3d 653 (E.D. Va. 2014) (Pet. App.26a). JURISDICTION Petitioner seeks review of a final decision of the Fourth Circuit entered on February 1, This Court has jurisdiction pursuant to 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED This case involves the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. 1330, , 1608 (Pet. App. at 91a), the Alien Tort Statute (ATS), 28 U.S.C (Pet. App. at 92a), and the Torture Victim Protection Act of 1991 (TVPA), 28 U.S.C note (Pet. App. at 92a).

15 2 STATEMENT OF THE CASE Petitioner Yusuf Abdi Ali was a colonel in the Somali National Army in the late 1980s, serving in the Fifth Battalion, in northern Somalia. App. at 26a-27a. The history of the instant appeal is best understood in the context of this Court s earlier consideration of similar issues of common-law immunity raised by another former government official from Somalia during that period, viz., Mohamed Ali Samantar, who served as the First Vice President, Minister of Defense and Prime Minister of the Democratic Republic of Somalia during the 1980s. In Samantar v. Yousuf, 560 U.S. 305 (2010), this Court held that the FSIA does not govern the immunity of individual officials who are sued for acts taken on behalf of a foreign state. Plaintiffs would still be prevented from circumventing the FSIA, the Court explained, because the immunity of foreign officials who are sued for their official acts is properly governed by the common law.... Id. at 325. On remand, however, the Fourth Circuit created an exception to common-law immunity that swallows the rule. The court held that a foreign official is not entitled to common-law immunity for acts performed in an official capacity whenever plaintiffs in a civil suit allege that those acts violate jus cogens norms of international law, such as norms prohibiting torture. In response to a petition for a writ of certiorari in the Samantar case following remand ( Samantar II ), this Court called for the views of the Solicitor General. The

16 3 Government advised that the Fourth Circuit s per se, categorical judicial exception to immunity for jus cogens violations conflicts with the Second Circuit s decision on the same issue; is predicated on... critical legal errors ; and should not be left standing because it threatens negative consequences for the United States foreignrelations interests. See Brief for the United States as Amicus Curiae at 11-12, 22, Samantar v. Yousuf, 134 S. Ct. 897 (2014) (Mem.) (No ), available at state.gov/documents/organization/ pdf U.S. Br. ). This Court denied the petition for certiorari in Samantar II. 134 S. Ct. 897 (2014) (Mem.). This Court s plenary review of the Fourth Circuit s erroneous rule of law in the instant appeal by Ali is warranted. District Court Proceedings As adverted to above, Petitioner Yusuf Abdi Ali was a colonel in the Somali National Army in the late 1980s, serving in the Fifth Battalion, in northern Somalia. Pet. App. at 27a. Two plaintiffs, then proceeding anonymously as Jane and John Doe, the latter of whom is the Respondent to the instant Petition, sued Ali under the TVPA and the ATS for alleged actions taken in his official capacity on behalf of Somalia. Id. at 28a. Respondent, whom we now know as Farhan Mohamoud Tani Warfaa, and the other plaintiff filed their complaint in November of 2004, in the United States District Court for the Eastern District of Virginia. Pursuant to an order of that court, issued on April 29, 2005, their complaint was dismissed voluntarily, and, in June of 2005, Warfaa

17 4 and the same plaintiff recommenced their suit in the same court, again proceeding anonymously. Id. For most of its duration, the subject proceedings were stayed in order to allow the United States Department of State an opportunity to submit its views as to: (1) whether it objects to the action going forward on the ground that Ali should have immunity, and (2) whether fact discovery in Ethiopia would interfere with U.S. foreign policy. Appendix at [the page # for the 6/21/13 letter from the district court to State]. In April of 2012, after the subject case briefly resumed, the district court granted a consent motion further to stay proceedings pending the decision of this Court in Kiobel v. Royal Dutch Petroleum, 133 S.Ct (2013). After this Court issued its decision in Kiobel, supra, in April of 2013, the district court judge, in consideration of the then recent recognition of The Federal Republic of Somalia Government by the United States, dispatched a letter to the State Department, advising the State Department that the district court had decided to continue the stay of the case in order to afford the State Department an opportunity to advise the court if allowing the subject litigation to proceed would have any negative effect on the foreign relations of the United States and requesting that any opinion to be given be received by the district court on or before September 19, Pet. App. at 1a. Responding to the district court s invitation to file a statement of interest, the United States responded, on September 19, 2013, by declining to take an affirmative position, and explaining, through a representative of the Legal Adviser to the Secretary of State, that it was not in a position to present views to the [c]ourt concerning [the] matter at this time. Pet. App. at 4a-7a.

18 5 Subsequently, i.e., on or about November 30, 2013, the then Prime Minister of The Federal Republic of Somalia, Abdi Farah Shirdon, issued a diplomatic letter to Secretary of State John Kerry, requesting, inter alia, a designation of immunity for Ali, pursuant to 28 U.S.C., 517, and that the State Department take action to obtain the dismissal of this case, a copy of which diplomatic letter was filed by undersigned counsel with the district court on December 4, Pet. App. at 8a-16a. Thereafter, in April of 2014, the district court lifted the stay, and, on May 9, 2014, Respondent, using his true name, filed an amended complaint against Ali, while the other original plaintiff dismissed her claims against Ali. Ali then moved to dismiss the amended complaint, arguing that he was entitled to common law official acts immunity. Pet. App. at 26a-50a, passim. Although the issue had not been raised in said motion to dismiss, the district court directed the parties in advance of the hearing of the motion to dismiss to be prepared to address the implications of the Kiobel decision as regards the Respondent s claims under the ATS. Id. The district court then held a hearing on the motion to dismiss the amended complaint on July 25, Pet. App. at 17a-25a, passim. In its ruling dismissing Respondent s ATS claims, the district court pointed out that [a]ll of the alleged conduct, which was said to have been carried out by Ali, who at the time was not a citizen or resident of the United States, occurred in Somalia, and that Warfaa has alleged no facts showing that [Petitioner s] violations of international law otherwise touch [ed] and concern[ed] the territory of the United States. Pet. App. at 31a.

19 6 The district court also rejected Ali s claims of common law immunity, on the official acts principle, because his alleged acts violated jus cogens norms, citing the Fourth Circuit s holding in Yousef v. Samantar, 699 F. 3d 763 (4th Cir. 2012), as controlling. Pet. App. at 40a-43a. Both parties timely appealed. Pet. App. at 57a. Fourth Circuit Proceedings The Fourth Circuit affirmed the district court s rulings, dismissing Respondent s claims under the ATS and allowing his claims under the TVPA to proceed, rejecting Ali s claim of official acts common law immunity and his invitation to to have the Fourth Circuit overrule its 2012 holding in Samantar, supra, where a panel of the Fourth Circuit had concluded that foreign officials are never entitled to common law immunity for acts committed in an official capacity if a plaintiff in a civil suit alleges violations of jus cogens norms of international law. Pet. App. at 53a-79a, passim. The Fourth Circuit explained its decision thus by stating, ipse dixit, that it was bound by the holding in Samantar, inter alia, and, perforce, that it had decided collectively not to exercise its power to overrule another panel of the Fourth Circuit, outside the en banc context, as a matter of prudence. Pet. App. at 78a-79a. There was also an opinion written by one of the judges on the panel, concurring in part and dissenting in part. Pet. App. at 79a-88a. The dissent addressed that aspect of the majority opinion pertaining to the dismissal of the ATS claims, opining that because Ali had extensive contacts with the United States, he should have been subject to the jurisdiction of the United States. Id.

20 7 Petition for Certiorari Petitioner seeks this Court s review of the Fourth Circuit s immunity decision. The Fourth Circuit s decision reinforces a circuit split, contravenes settled principles of domestic and international law, and risks reciprocal treatment of U.S. officials abroad. REASONS FOR GRANTING THE PETITION I. THE FOURTH CIRCUIT S DECISION REINFORCES A CIRCUIT SPLIT OVER THE IMPORTANT QUESTION OF WHETHER ALLEGED JUS COGENS VIOLATIONS DEFEAT FOREIGN OFFICIAL IMMUNITY A. The Fourth Circuit s Decision Conflicts With The Decisions Of Other Circuits As the Solicitor General previously recognized in the Government s brief in Samantar II (described infra, p. 16), the Fourth Circuit fashioned a per se rule a categorical judicial exception to conduct-based immunity for cases involving alleged violations of jus cogens norms. U.S. Br. at 11, Lower courts in the Third and Ninth Circuits have applied the Fourth Circuit rule, while concluding that the conduct before them did not require the forfeiture of the defendants common law immunities. See Mireskandari v. Mayne, No. CV JGB (MRWx) X, 2016 WL , at *17 (C.D. Cal. Mar. 23, 2016), judgment entered, No. CV123861JGBMRWX, 2016 WL (C.D. Cal. Mar. 23, 2016) ( The Court finds the reasoning of the Fourth Circuit in Yousuf detailed and persuasive, and as such, will apply it to the facts of this

21 8 case. ); Richardson v. Attorney Gen. of the British Virgin Islands, No. CV , 2013 WL , at *15-17 (D.V.I. Aug. 20, 2013). By contrast, the Second, Seventh, and D.C. Circuits have reached the opposite conclusion. See Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. 2009) (relying on an Executive Branch determination in order to find immunity but reciting generally that [a] claim premised on the violation of jus cogens does not withstand foreign sovereign immunity ); Belhas v. Ya alon, 515 F.3d 1279, 1287 (D.C. Cir. 2008), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 305 (2010); Ye v. Zemin, 383 F.3d 620, (7th Cir. 2004), cert. denied, 544 U.S. 975 (2005). 1. As the Solicitor General noted to this Court in Samantar II, the Fourth Circuit s decision conflicts with the Second Circuit s decision in Matar v. Dichter. U.S. Br. at 22. Whereas the Fourth Circuit created a categorical exception to official immunity whenever allegations of jus cogens violations are made, Matar granted official immunity to a defendant in a case involving alleged violations of jus cogens norms. Id. at In Matar, plaintiffs sued the former head of the Israeli Security Agency under the ATS and TVPA, alleging that he authorized various war crimes in an Israeli military operation in Gaza City. 563 F.3d at Plaintiffs claimed that he was not entitled to foreign official immunity because these acts allegedly violated jus cogens norms of international law. The Government filed a statement of interest in Matar explaining that the common law does not recognize any

22 9 exception to foreign sovereign immunity for alleged jus cogens violations. See Statement of Interest of the United States of America at 27-33, Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007) (No ), state.gov/documents/organization/98806.pdf (U.S. SOI in Matar); Brief for the United States of America as Amicus Curiae in Support of Affirmance at 21-25, Matar, 563 F.3d 9 (2d Cir. 2007) (No ), 2007 WL (U.S. Amicus in Matar). The Second Circuit agreed with the Government s well-founded views and expressly rejected the plaintiffs argument that there can be no immunity... for violations of jus cogens... norms. 563 F.3d at 14. A claim premised on the violation of jus cogens, the court held, does not withstand foreign sovereign immunity. Id. at 15. Thus, the defendant was entitled to common-law immunity for acts performed in his official capacity. Id. at 14 (quoting Restatement (Second) of Foreign Relations Law 66(f) and citing Heaney v. Gov t of Spain, 445 F.2d 501, 504 (2d Cir. 1971)). To be sure, the Government in this case has taken no position as to whether Petitioner should be granted immunity, see Pet. App. 4a-7awhile, in Matar, the Government suggested that the defendant be immunized from suit. U.S. Amicus in Matar at 3-4. But in Matar, the Government argued against a jus cogens exception to immunity. U.S. SOI in Matar at 27-33; U.S. Amicus in Matar at Indeed, the Government has consistently taken the position that the common law of foreign official immunity does not recognize a jus cogens exception. See, e.g., Brief for the United States as Amicus Curiae Supporting Affirmance at 27-30, Ye v. Zemin, 383 F.3d

23 (7th Cir. 2004) (No ), documents/organization/78379.pdf (U.S. Amicus in Ye); Further Statement of Interest of the United States in Support of the United States Suggestion of Immunity at 14-15, Weixum v. Xilai, 568 F. Supp. 2d 35 (D.D.C. 2008) (No ), available at documents/organization/ pdf. The Second Circuit s position in Matar has since been upheld by that court in 1Rosenberg v. Pasha, 577 F. App x 22 (2d Cir. 2014). In finding common law immunity for two directors of a Pakistani intelligence agency alleged to have coordinated the 2008 Mumbai terror attacks, the court specifically rejected the suggestion of the plaintiffs that 2 we should... adopt a cogent litmus test similar to the Fourth Circuit ( quoting the Appellants brief). Id. at The Fourth Circuit s decision also conflicts with the D.C. Circuit s decision in Belhas, 515 F.3d at There, plaintiffs sued a former general of the Israeli Defense Forces under the ATS and TVPA, alleging that he authorized war crimes and extrajudicial killings that occurred during Israeli military operations in Lebanon. Id. at In concluding that the defendant was entitled to foreign sovereign immunity, the D.C. Circuit rejected the plaintiffs argument that jus cogens violations can never be authorized by a foreign state and so can never cloak foreign officials in immunity. Id. at Belhas, which was decided before this Court s decision in Samantar, considered whether a jus cogens exception applied to an individual official s immunity under the FSIA. See id. at But, because the rules developed for foreign official immunity under the FSIA also may be

24 11 correct as a matter of common-law principles, Samantar, 560 U.S. at 322 n.17, the rationale and result of Belhas continue to apply after this Court s holding in Samantar that individual immunity is governed by the common law directly, rather than by the common law as codified by the FSIA. See Giraldo v. Drummond Co., 808 F. Supp. 2d 247, (D.D.C. 2011) (applying Belhas and concluding that plaintiffs allegations of jus cogens violations do not defeat a foreign official s entitlement to common-law immunity), aff d, 493 F. App x 106 (D.C. Cir. 2012) (per curiam). 3. Finally, the decision below also is at odds with the Seventh Circuit s decision in Ye, 383 F.3d at There, the plaintiffs sued the former President of China under the ATS, alleging that he authorized torture, genocide, and the arbitrary arrest and imprisonment of Falun Gong practitioners. Id. at 622. The plaintiffs argued that because these alleged acts violated jus cogens norms, the defendant was not entitled to immunity. Id. at 624. The Government urged the Seventh Circuit not to recognize a jus cogens exception. See U.S. Amicus in Ye at The Seventh Circuit agreed, rejecting the plaintiffs argument that the Executive Branch has no power to immunize a head of state (or any person for that matter) for acts that violate jus cogens norms of international law. Ye, 383 F.3d at 625 (emphasis added); see also Brief for the United States as Amicus Curiae Supporting Appellee at 8, Giraldo v. Drummond Co., 493 F. App x 106 (D.C. Cir. 2012) (No ), 2012 WL (explaining that the Seventh Circuit in Ye expressly h[eld] that allegations of jus cogens violations cannot overcome the Executive Branch s determination of foreign official immunity ).

25 12 B. This Important Question Warrants This Court s Immediate Review The circuit split that the Fourth Circuit has created involves an exceptionally important question that warrants this Court s immediate intervention. As the Solicitor General put it in his brief in Samantar II, the Fourth Circuit s ruling should not be left standing because it could have negative consequences for the United States foreign-relations interests. U.S. Br. at 12. The Fourth Circuit rule applied in this case undermines the comity between the United States and other sovereigns that the doctrine of foreign sovereign immunity was meant to protect. See, e.g., Republic of Austria v. Altmann, 541 U.S. 677, 688 (2004) (citing Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch)116, 136 (1812)). It also opens the floodgates to countless cases in U.S. courts challenging extraterritorial conduct in foreign nations, including close allies of the United States. See, e.g., Belhas, 515 F.3d at 1287 (suit alleging jus cogens violations by former Israeli general in connection with military operations in Lebanon). Indeed, if the decision below is allowed to stand, the Fourth Circuit may well become a magnet for suits against foreign officials, who may be served whenever they pass through Maryland or Northern Virginia to reach Washington, D.C. Cf. Ye, 383 F.3d at 623 (process served while President Jiang was staying at a hotel in Chicago); Mem. of P. & A. in Supp. of Avraham Dichter s Mot. to Dismiss the Compl. at 1, Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007) (No ), 2005 WL (process served while former Director of Israel s Security

26 13 Agency was appearing in New York for a speech); see also Mwani v. bin Laden, 417 F.3d 1, (D.C. Cir. 2005) (concluding that Federal Rule of Civil Procedure 4(k)(2) effectively served as a nationwide long-arm statute that eliminate[d] the need to employ the forum state s long arm statute in an action brought under the Alien Tort Statute). The Fourth Circuit s per se rule nullifies foreign sovereign immunity in the vast majority of ATS and TVPA cases. The jus cogens exception merges the merits of the underlying claim with the issue of immunity. Belhas, 515 F.3d at (Williams, J., concurring). Thus, every time a plaintiff even alleges a jus cogens violation by a foreign official, there will effectively be no immunity. Giraldo, 808 F. Supp. 2d at 250; see also Heaney, 445 F.2d at 504. Many ATS and TVPA suits against foreign states and their officials, including some close allies of the United States, already involve allegations of jus cogens violations. 1 Indeed, a Westlaw search of cases published 1. See, e.g., Matar, 563 F.3d at 10 (alleging former director of Israeli Security Agency authorized extrajudicial killing and other war crimes in military operations in Gaza City); Belhas, 515 F.3d at (alleging former Israeli Head of Army Intelligence authorized extrajudicial killing and other war crimes in military operations in Lebanon); Enahoro v. Abubakar, 408 F.3d 877, (7th Cir. 2005) (alleging Nigerian general authorized torture and extrajudicial killing); Ye, 383 F.3d at 622 (alleging President of China authorized torture and genocide); Doe I v. State of Israel, 400 F. Supp. 2d 86, (D.D.C. 2005) (alleging Israeli officials authorized torture and genocide); Doe v. Qi, 349 F. Supp. 2d 1258, (N.D. Cal. 2004) (alleging Chinese officials tortured and

27 14 between March 1, 2010 and May 1, 2014 involving ATS and TVPA claims against foreign states and/or foreign officials disclosed that 92% (33 out of 36 cases) involved alleged conduct that would violate jus cogens norms, as the Fourth Circuit defines that term. The Fourth Circuit s opinion in this case invites ever more such suits. The jus cogens exception recognized by the court below also effectively make[s] the [FSIA] optional, Samantar, 560 U.S. at 324 (quoting Chuidian v. Phillipine Nat l Bank, 912 F.2d 1095, 1102 (9th Cir. 1990)), contrary to this Court s decision in Samantar, 560 U.S. at 324. Every court to consider the question has held that there is no jus cogens exception to a foreign state s immunity under the FSIA. See Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1156 (7th Cir. 2001) (noting that a jus cogens exception would allow for a major, open-ended expansion of our jurisdiction into an area with substantial impact on the United States foreign relations ); Smith v. Socialist People s Libyan Arab Jamahiriya, 101 F.3d 239, (2d Cir. 1996) (rejecting argument that a foreign state should be deemed to have forfeited its sovereign immunity [under the FSIA] whenever it engages in conduct that violates fundamental humanitarian standards (emphasis omitted)); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 719 (9th Cir. 1994) (holding that [t]he fact that there has been a violation of jus cogens does not confer jurisdiction over a foreign state under the FSIA); Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 & n.1 (D.C. Cir. 1994) (finding no jus cogens exception to FSIA arbitrarily detained plaintiffs); Paul v. Avril, 812 F. Supp. 207, 209 (S.D. Fla. 1993) (alleging former head of Haitian military authorized torture and arbitrary detention).

28 15 immunity). Under the Fourth Circuit s rule, however, litigants through artful pleading, Samantar, 560 U.S. at 324, will easily circumvent FSIA immunity by suing the responsible officer instead of the foreign state itself. Finally, the decision below risks reciprocal treatment for U.S. officials sued in foreign courts whether those officials are former Bush Administration officials sued for allegedly authorizing torture, or Obama Administration officials sued for allegedly authorizing illegal drone attacks. As the Government has made clear, [g]iven the global leadership role of the United States, U.S. officials are at special risk of being subjected to politically driven lawsuits abroad in connection with controversial U.S. military operations. U.S. Amicus in Matar at 25. The Fourth Circuit s erroneous decision thus reinforces the circuit split on a significant and recurring issue, and warrants this Court s immediate review. C. This Case Presents An Ideal Vehicle To Consider The Question Presented This case presents an excellent vehicle to consider the Question Presented. The Fourth Circuit s position, while wrong, is thoroughly reasoned. The Government s previous filing in Samantar II makes clear that the Fourth Circuit s rule reflects a circuit split and threatens important national interests. Also, unlike the situation in Samantar II, where this Court denied certiorari, the decision in this case is also unfreighted by any Executive Branch determination of immunity, any question as to desire of the Government of Somalia to have Petitioner recognized as immune, or any judgment in the District Court adverse to Petitioner.

29 16 II. THE FOURTH CIRCUIT S DECISION IS WRONG The Fourth Circuit s per se rule of non-immunity whenever jus cogens violations are alleged is wrong as a matter of law. A. The Fourth Circuit s Decision Is Contrary To International Law The Solicitor General explained in Samantar II that the Fourth Circuit fundamentally erred by fashioning a new categorical judicial exception to immunity for claims alleging violation of jus cogens norms. U.S. Br. 19, 21. This per se, categorical exception contradicts bedrock principles of international law and should not be left standing. Id. at 12, 19, 21. The U.S. State Department recently recognized that the scope of the jus cogens doctrine has not gained a sufficient international consensus to admit of its being a subject for consideration by the U.N. International Law Commission. In arguing against adding the subject of jus cogens to the Commission s work agenda, the Acting Legal Advisor noted that it is not clear that practice on this topic has developed sufficiently since 1993 to justify a conclusion different than the one reached at that time [not to have the Commission address the topic then]. Remarks by Mary McLeod at the 69th United Nations General Assembly Sixth Committee (Legal) Session on Agenda Item 78: Report of the International Law Commission on the Work of its 66th Session (Oct. 28, 2014) available at remarks/6229.

30 17 As the Fourth Circuit has recognized, international law has shaped the development of the common law of foreign sovereign immunity. Samantar II, 699 F.3d at 773. Thus, it is critical that courts interpreting the common law not disturb th[e] international consensus concerning foreign official immunity since [s]uch a deviation from the international norm would create an acute risk of reciprocation by foreign jurisdictions. U.S. Amicus in Matar at As this Court explained in a related context, in light of the concept of reciprocity that governs much of international law in this area, we have a more parochial reason to protect foreign diplomats in this country. Doing so ensures that similar protections will be accorded those that we send abroad to represent the United States, and thus serves our national interest in protecting our own citizens. Boos v. Barry, 485 U.S. 312, (1988) (citation omitted). Courts in other countries have consistently refused to recognize a jus cogens exception to immunity in civil cases whether a foreign state or its officials are sued. See, e.g., Zhang v. Zemin, [2010] NSWCA 255, at 121, 153 (C.A.) (Australia); Fang v. Jiang, [2006] NZAR 420, (H.C.) (New Zealand); Jones, 1 A.C. at (Lord Hoffman) (U.K.); Bouzari v. Islamic Republic of Iran, [2004] 71 O.R.3d 675, 695 (C.A.) (Canada); Al-Adsani v. United Kingdom, App. No /97, 61, 34 Eur. H.R. Rep. H. (2001) (European Court of Human Rights). Indeed, the International Court of Justice has rejected a jus cogens exception to immunity in civil suits. See Jurisdictional Immunities of the State (Ger. v. Italy), Judgment, (Feb. 3, 2012), available at icj-cij.org/docket/files/143/16883.pdf. As to cases brought

31 18 in an Italian court against Germany and German officials for war crimes that occurred in Italy during World War II, the ICJ found that there is almost no State practice which might be considered to support the proposition that a State is deprived of its entitlement to immunity in such a case. Id. at 83. The ICJ emphasized that the national courts of the United Kingdom, Canada, Poland, New Zealand, and Greece, as well as the European Court of Human Rights, have rejected such an exception in each case after careful consideration. Id. at 96 (citing cases). Moreover, the ICJ warned that if the mere allegation that the State had committed such wrongful acts were to be sufficient to deprive the State of its entitlement to immunity, immunity could, in effect be negated simply by skillful construction of the claim. Id. at 82. Therefore, under customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict. Id. at 91. The UN Convention on Jurisdictional Immunities of States and Their Properties similarly confirms that a jus cogens exception to immunity in civil cases contravenes customary international law. This proposed multilateral treaty, which the UN General Assembly endorsed in 2004, does not recognize such an exception. See Fang, NZAR at 434; Jones, 1 A.C. at 289 (Lord Bingham). In fact, the Convention s drafters twice rejected proposals to adopt such an exception, both because there was no settled state practice to support it and because any attempt to include such a provision would almost certainly have jeopardized the conclusion of the Convention. Curtis A. Bradley & Laurence R. Helfer, International Law and the U.S.

32 19 Common Law of Foreign Official Immunity, 2010 Sup. Ct. Rev. 213, 246 (citation and internal quotation marks omitted). The Fourth Circuit in Samantar II cited authorities recognizing a jus cogens exception to immunity in criminal cases where the Convention Against Torture (CAT) applies. See, e.g., Regina v. Bartle, ex parte Pinochet, 38 I.L.M. 581, (H.L. 1999). However, while parties to the CAT have agreed to criminal jurisdiction over extraterritorial torture in certain circumstances, the CAT does not abrogate immunity in civil cases. See Jurisdictional Immunities of the State (Ger. v. Italy) at 87 ( The Court does not consider that the United Kingdom judgment in Pinochet... is relevant because inter alia the rationale for the judgment in Pinochet was based upon the specific language of the 1984 United Nations Convention against Torture. ); see also Fang, NZAR at ; Jones, 1 A.C. at , , 293, ; Bouzari, 71 O.R.3d at ; Status of the CAT, at 21, UN Doc. CAT/C/2/Rev.5 (Jan. 22, 1998); 136 Cong. Rec. S (daily ed. Oct. 27, 1990) (the CAT requires a State party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State, not for alleged torture abroad). For at least two reasons, international law clearly distinguishes between the civil and criminal immunity of officials. U.S. SOI in Matar at 30; see also, e.g., Jurisdictional Immunities of the State (Ger. v. Italy) at 87 (explaining that the distinction between criminal and civil proceedings [w]as fundamental to the decision in Pinochet (quoting Jones, 1 A.C. at 290 (Lord Bingham)).

33 20 First, officials are accorded immunity [from civil suits] in part because states themselves are responsible for their officials acts [while] [o]n the criminal side,... international law holds individuals personally responsible for their international crimes, and does not recognize the concept of state criminal responsibility. U.S. SOI in Matar at 30. Thus, because states cannot be held criminally liable for their acts, the [criminal] sanction can be imposed on the individual without subjecting one state to the jurisdiction of another. Bouzari, 71 O.R.3d at 695; Jones, 1 A.C. at 290 ( A state is not criminally responsible in international or English law, and therefore cannot be directly impleaded in criminal proceedings. ) (Lord Bingham). Second, private civil litigation over jus cogens claims, to which states have not consented, lacks the prosecutorial safeguards and state-to-state direct accountability of a criminal proceeding initiated by the government. See U.S. SOI in Matar at 30 ( critically, there is the check of prosecutorial discretion in the criminal context ); Fang, NZAR at 433 ( Criminal proceedings may only be brought... by the state [while] civil proceedings... may be brought by private persons. ); Zhang, NSWCA 255, at 159 ( Litigation of a criminal character can ultimately be controlled by the powers and capacities of the Attorney-General and the prosecuting authorities. ); Curtis A. Bradley & Jack L. Goldsmith, Pinochet and International Human Rights Litigation, 97 Mich. L. Rev. 2129, 2181 (1999). As these authorities demonstrate, there is no jus cogens exception to foreign official immunity in civil cases. Indeed, the Fourth Circuit s rule dramatically

34 21 departs from customary international law and creates a significant risk of reciprocal treatment of U.S. officials by foreign nations. B. The Fourth Circuit s Decision Is Contrary To Domestic Law, Including Decisions Of This Court The Fourth Circuit also erroneously decided that domestic law recognizes a jus cogens exception to foreign official immunity on the basis that violation[s] of jus cogens norms cannot constitute official sovereign acts. Samantar II, 699 F.3d at 776 (quoting Sarei v. Rio Tinto PLC, 487 F.3d 1193, 1209 (9th Cir. 2007). In Saudi Arabia v. Nelson, this Court squarely rejected the premise of the Fourth Circuit s exception. 507 U.S. 349 (1993). There, the plaintiff sued the Saudi government, alleging that Saudi officials tortured him in retaliation for complaining about unsafe conditions at a Saudi hospital. Id. at In deciding that the commercial-activities exception to the FSIA did not apply, the Court concluded that these alleged acts (which undoubtedly would violate jus cogens norms, as defined by the Fourth Circuit) were nevertheless sovereign acts of a foreign state. Id. at 361. As this Court explained, a foreign state s exercise of the power of its police[,]... however monstrous such abuse undoubtedly may be... [is] peculiarly sovereign in nature. Id. In reaching this conclusion, this Court relied in part on cases applying the common-law sovereign immunity principles that the FSIA codified. See, e.g., id. (citing Victory Transport Inc. v. Comisaria General de

35 22 Abastecimientos y Transportes, 336 F.2d 354, 360 (2d Cir. 1964)). And just as it is appropriate for this Court to rely on the common law to determine the scope of FSIA immunity, Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193, (2007), it is similarly appropriate to rely on the FSIA to interpret the scope of common-law immunity. Matar, 563 F.3d at (relying in part on case applying the FSIA to determine whether there is a jus cogens exception to common-law foreign official immunity). Indeed, this Court in First National City Bank v. Banco Para El Comercio Exterior de Cuba relied in part on the policies underlying the FSIA to fashion a common-law rule governing when it is appropriate to pierce the veil of a corporation owned by a foreign state. 462 U.S. 611, (1983); see also Boyle v. United Techs. Corp., 487 U.S. 500, (1988) (relying in part on the policies underlying the Federal Tort Claims Act to determine the scope of common-law contractor immunity). In sum, by creating a jus cogens exception to foreign official immunity in civil cases, the Fourth Circuit has substantially departed from well-established domestic and international law.

36 23 CONCLUSION The petition for certiorari should be granted. Respectfully submitted, Joseph Peter Drennan Counsel of Record 218 North Lee Street, 3 rd Floor Alexandria, Virginia (703) joseph@josephpeterdrennan.com Counsel for Petitioner

37 APPENDIX

38 1a APPENDIX A UNITED STATES DISTRICT COURT Eastern district of Virginia 401 Courthouse Square Alexandria Virginia Chambers of Leonie M. Brinkema District Judge Telephone (7103) Facsimile ( Mary McLeod Principal Deputy Legal Adviser U.S. Department of State 2201 C Street NW Washington, DC June 21, 2013 Dear Ms. McLeod: I write regarding Doe v. Yusuf Abdi Ali, No. 1:05-CV- 701, a civil action before me in the United States District Court for the Eastern District of Virginia. In this litigation, two anonymous individuals have filed claims against Yusuf Abdi Ali under the Alien Tort Statute and the Torture Victim Protection Act. John and

39 2a Jane Doe, who reside in northwest Somalia, assert that Mr. Ali was a commander in the Somali National Army under the Siad Barre regime from approximately 1984 to 1989, and that he and his soldiers targeted individuals they suspected of supporting rebel forces. Both allege that they were arrested, detained, and tortured; specifically, Jane Doe claims that she was beaten while pregnant, suffered a miscarriage, and was imprisoned in a windowless cell for six years, and John Doe states that he was shot multiple times by Mr. Ali at point-blank range. Mr. Ali, who is now a U.S. resident living in Virginia, denies these allegations. This lawsuit was originally filed in November 2004 but was stayed to allow the State Department to advise the Court as to (1) whether it objects to this action going forward on the grounds that former Somali officials should have immunity, and (2) whether fact discovery in Ethiopia would interfere with U.S. foreign policy. The United States never filed a specific response as to this case, but did file a Statement of Interest in a related case in which it opined that a former Prime Minister and Defense Minister of Somalia does not enjoy immunity. See Yousuf v. Samantar, 1:04-cv-1360 (E.D. Va.). More recently, the Court also temporarily stayed the lawsuit to allow the U.S. Supreme Court to reach a decision in Kiobel v. Royal Dutch Petroleum, 133 S. Ct (2013), which involved the territorial reach of the Alien Tort Statute. Given the United States recent recognition of the Somali government, the Court has again temporarily stayed this action to give the State Department an opportunity to advise it as to whether allowing this

40 3a litigation to proceed would have any negative effect on the foreign relations of the United States. If the State Department wishes to communicate its views on this issue, please be advised that its opinion must be received on or before September 19, Sincerely, /s/ Leonie M. Brinkema, United States District Court Judge

41 4a APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division 1:05-cv-701 (LMB/JFA) JANE DOE, et al., v. YUSUF ABDI ALI, Plaintiffs, Defendant. STATEMENT OF INTEREST SUBMITTED BY THE UNITED STATES OF AMERICA By letter to the Department of State dated June 21, 2013, this Court invited the views of the Department of State on whether allowing this litigation to proceed would have any negative effect on the foreign relations of the United States.

42 5a Pursuant to 28 U.S.C. 517, 1 the United States of America notes its appreciation for the Court s invitation, and advises that it respectfully declines to express views on the subject of the Court s inquiry. See Letter from Mary E. McLeod to Joseph H. Hunt (copy attached as Exhibit A). Dated: September 19, 2013 Respectfully submitted, STUART F. DELERY Assistant Attorney General KATHLEEN M. KAHOE Acting United States Attorney ANTHONY J. COPPOLINO Deputy Branch Director By: /s/ LAUREN A. WETZLER Chief, Civil Division Assistant United States Attorney Justin M. Williams U.S. Attorney s Building 2100 Jamieson Ave. Alexandria, VA Tel: (703) Fax: (703) lauren.wetzler@usdoj.gov U.S.C. 517 provides that any officer of the Department of Justice[] may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States.

43 6a GREGORY DWORKOWITZ Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW, Rm Washington, DC Tel.: (202) Fax: (202) Counsel for United States of America

44 7a EXHIBIT A United States Department of State Washington, D.C September 17, 2013 Re: Doe v. Abdi Ali, No. 1:05-cv-701 (E.D.Va.) Dear Mr. Hunt: I am writing with respect to Judge Brinkema s letter dated June 21, 2013 in the above captioned case. In that letter, Judge Brinkema provided the State Department with the opportunity to communicate its views as to whether allowing this litigation to proceed would have any negative effect on the foreign relations of the United States. We request that the Department of Justice convey to the Court that the Department of State respectfully declines the Court s invitation to express views on this matter. We appreciate the opportunity to comment on this matter. Sincerely, Mary E. McLeod Acting Legal Adviser

45 8a APPENDIX C UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA (Alexandria Division) Civil Action No.: In re JANE DOE, et alii, Versus (LMB/JFA) YUSUF ABDI ALI, PRAECIPE AND NOTICE OF FILING Dear Mr. Clerk: Defendant. Kindly note the filing herewith of the accompanying true xerographic copy of a 30 November 2013, diplomatic letter from H.E. Abdi Farah Shirdon, Prime Minister of The Federal Republic of Somalia, addressed to the Honorable John Forbes Kerry, Secretary of State of the United States of America, by which letter Prime Minister

46 9a Shirdon has requested that the United States take all appropriate steps to validate the immunity from suit of the Defendant in the above-encaptioned cause, viz., Yusuf Abdi Ali, pursuant to 28 U.S.C., 517. This Honorable Court and the parties hereto should be advised that it is the understanding of the undersigned that the original of the said diplomatic letter has been delivered to the Secretary of State through diplomatic channels. Thank you for your kind attention and courtesy. Respectfully submitted, /s/ Joseph Peter Drennan JOSEPH PETER DRENNAN 218 North Lee Street Third Floor Alexandria, Virginia Telephone: (703) Telecopier: (703) Virginia State Bar No ATTORNEY AND COUNSELLOR FOR YUSUF ABDI ALI, DEFENDANT